Ohio Administrative License Suspensions-Lesson #2

The last entry in this blog discussed lesson number one for appealing an Ohio Administrative License Suspension (A.L.S.).  The lesson came from a recent appellate case.  That lesson was for defense lawyers, and it was simple:  file the appeal on time.  This entry discusses lesson number two, which also comes from a recent appellate case.  This lesson is for courts, and it is also simple:  follow the law.

Scales of justice half

The government cannot take property without due process of law.  Due process of law includes an opportunity to be heard (a hearing) at a meaningful time and in a meaningful manner.  With an A.L.S., the executive branch of government takes property from an individual by suspending the individual’s driver’s license.  Therefore, the individual is entitled to a meaningful hearing at meaningful time.  The most meaningful time for the hearing would be before the license suspension is imposed.  However, the Ohio Supreme Court held the A.L.S., with a post-suspension hearing, is not unconstitutional.

What keeps the A.L.S. from being unconstitutional is mainly the procedures found in Ohio Revised Code (O.R.C.) section 4511.192.  That statute includes the following requirements:

•    The officer must advise the individual of the consequences of taking or refusing a chemical test, using a form (BMV form 2255).
•    The officer’s advice must be witnessed, and the witness must sign the form.
•    The officer must write on the form the officer’s reasonable grounds to believe the individual was under the influence.
•    The officer must notify the individual of the suspension and the individual’s right to appeal the suspension.
•    The officer must sign the form, and the form must be sworn.
•    The officer must give a sworn copy of the form to the individual.
•    The officer must send copies of the form to the court and the BMV within 48 hours of the individual’s arrest.

These procedures were the subject of State v. Holbrook. In that case, the BMV form 2255 did not contain the signatures of the officer and the witness, and the form did not contain the officer’s reasonable grounds to believe the defendant was under the influence. In addition, the officer did not send the form to the court within 48 hours of the defendant’s arrest.

The appellate court concluded the officer’s failure to follow the law does not matter. The Court cited O.R.C. section 4511.197, the statute for appealing an A.L.S. Section 4511.197 only provides four bases for appealing the A.L.S:

• Whether the officer had reasonable grounds to believe the individual was under the influence
• Whether the officer requested the individual to submit to a chemical test
• Whether the officer informed the individual of the consequences of taking or refusing the test
• Whether the individual refused the test or tested ‘over the limit’

The Court acknowledged the officer failed to comply with O.R.C. 4511.192.  The court noted, however, the officer’s failures were unrelated to the four appeal bases listed in section 4511.197. Therefore, the Court overruled Holbrook’s A.L.S. appeal and motion to terminate the A.L.S.

The Court in Holbrook ignored case law, including precedent set by the same appellate court. Prior appellate cases from multiple Ohio appellate courts have held the A.L.S. terminates if the arresting officer did not comply with the requirements of O.R.C. section 4511.192. One prior case decided by the same court as Holbrook held the A.L.S. terminates if the officer failed to send the form to the court. Another case decided by the same appellate court held the A.L.S. terminates if the form did not contain the officer’s reasonable grounds to believe the defendant was under the influence. These cases were not mentioned in the Holbrook decision.

If an officer fails to comply with the requirements of O.R.C. section 4511.192, the officer is removing the procedural safeguards which make the A.L.S. constitutional. When this occurs, termination of the A.L.S. is the remedy suggested by statutory law and case law. For this reason, A.L.S. lesson number two is for courts to follow the law.